ALEC Has a New Tactic It’s Using to Take Down the EPA

May 5, 2014

by Emily Atkin

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(In this Feb. 7, 2007, file photo Sunflower Electric Cooperative's coal-fired power plant churns out electricity in Holcomb, Kan. From electricity producers to the steel and oil industries, companies that fear a huge hit to their businesses from emerging legislation to curb global warming are lobbying Congress to compensate them as part of the deal. (AP Photo/Charlie Riedel)

The American Legislative Exchange Council’s (ALEC) mission to prevent the US Environmental Protection Agency from regulating greenhouse gas emissions has expanded into an “unusual” coordinated campaign involving state attorneys general, according to documents obtained by The Guardian and released Friday.

ALEC, an influential right-wing lobbying group funded in part by petrochemical billionaires Charles and David Koch, has been working to undermine anti-pollution and pro-clean energy policiesforyears. But in 2014, the group adopted a new tactic — seeking out friendly state attorneys and encouraging them to sue the EPA.

This, according to the non-profit Centre for Media and Democracy (CMD), is unlike anything the group has ever done before — at least to their knowledge. ALEC, the group’s director of research said, is known more for pushing anti-climate and pro-industry bills in state legislatures, not actively crusading against the EPA at the federal level.

“ALEC has become quite well known and notorious for promoting model legislation. This is different,” CMD’s Nick Surgey told The Guardian. “ALEC is engaging much more broadly in the campaign against the EPA regulations, and they are doing so by asking their members to advocate for the coal industry with attorney generals. That is very unusual for them.”

The documents showing ALEC’s strategy were originally obtained by CMD, which then gave them to The Guardian. The documents were notes from a conference call of ALEC’s members discussing lobbying strategy. The notes, prepared by oil industry-supported group Consumer Energy Alliance (CEA), discussed “reaching out to attorney generals and other officials to consolidate opposition to the EPA regulations.” When reached by The Guardian, former CEA Policy Director Bo Ollison did not reportedly dispute the accuracy of the notes.

The strategy to reach out to state attorneys was reportedly spearheaded by Nebraska attorney general and ALEC member Jon Bruning, who has already filed a lawsuit against the EPA challenging its proposed regulations on greenhouse gas emissions from new power plants.

“EPA continues to try and ‘fix things’ that are not broken,” Bruning said during the conference call held on January 16, just one day after filing his lawsuit.

The EPA’s proposed rule would mandate that all future coal plants can emit just 1,100 pounds of carbon dioxide per megawatt-hour. An average US coal plant currently dumps over 1,700 pounds of carbon dioxide into the atmosphere for every megawatt-hour of energy it produces. Utilities would also only be able to build new coal plants if they are able to capture 20 to 40 percent of the carbon they emit and store it underground.

Nebraska seems to be the only state so far that has challenged the proposed rule in court, though legal experts told Law360 shortly after it was filed that more lawsuits would likely pop up once the final regulations are issued. Legally, the problem with trying to sue the EPA before it issues a final regulation is that no one is actually affected by it yet, so Bruning will have trouble proving his state is actually being harmed by it.

“Regardless of what nail polish they want to put on this case, it’s about a federal rulemaking that’s not final,” Ballard Spahr LLP environmental partner Brendan Collins told Law360 at the time. “EPA, frankly, can consider whatever it wants.”

Still, ALEC reportedly suggested in the documents that states should begin forming coalitions against the proposed rule, aligning their positions with one another to put pressure on the White House.

“If many states (legislators, attorney generals, environment and public utility commissioners, energy officials) take strong complementary positions early next year, the White House and EPA would recognize the importance and desire for states to be able to fully exercise their rights under the Clean Air Act and its implementing regulations,” one of the documents reads.

Emily Atkin is a reporter for Climate Progress. She is a native of New York’s Hudson Valley, and holds a BA in journalism from the State University of New York at New Paltz. Before joining the team at American Progress, she worked as a newsgatherer and reporter covering litigation and policy for the legal newswire Law360. Emily has also held internships with The New York Observer, The Legislative Gazette and investigative reporter Wayne Barrett.

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